Central Information Commission
Rajesh Kumar Sharma vs Chief Commissioner Of Income Tax (Cca) , ... on 22 November, 2018
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग
, मुिनरका
Baba Gangnath Marg, Munirka
नई द
ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/DGIIC/A/2017/604444-BJ
Mr. Rajesh Kumar Sharma
446-Diamond Avenue, Majitha Road,
Near Gurudwara Amritsar, Punjab - 143001
(M: 08557012349)
....अपीलकता
/Appellant
VERSUS
बनाम
1. CPIO,
O/o the Director General of Income Tax (Investigation)
NW Region, SCO-132-133, Sector-34A,
Chandigarh-160022
2. CPIO,
O/o the Chief Commissioner of Income Tax,
Aayakar Bhawan, Maqbool Road, Amritsar-143001
... ितवादीगण /Respondent
Date of Hearing : 22.11.2018
Date of Decision : 22.11.2018
Date of RTI application 30.05.2017
CPIO's response Not on Record
Date of the First Appeal 28.06.2017
First Appellate Authority's response Not on Record
Date of diarized receipt of Appeal by the Commission NIL
ORDER
FACTS The Appellant vide his RTI application sought information on 05 points regarding diary number and/or registration number assigned to each complaint sent to the Income Tax Department, present status of each complaint, stage of investigation, and steps taken by the Competent Authority in this regard and issues related thereto.
Dissatisfied due to non-receipt of any reply from the CPIO, the Appellant approached the FAA. The FAAs order if any, is not on the record of the Commission.
Page 1 of 6HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Absent;
Respondent: Mr. Narendra Dhanda, ITO, Chandigarh (M: 09530786886) and Mr. Karnail Singh, Inspector, AAO (M: 09814141099), Chandigarh and Mr. Tarsemraj, ITO, (M: 07589304981), Amritsar through VC;
The Appellant remained absent during the hearing. Mr. Sukhman Preet Singh, Network Engineer NIC studio at Amritsar confirmed the absence of the Appellant. The Respondent at Chandigarh submitted that this matter was transferred to CCIT, Chandigarh for further action. In its reply, the Respondent, Amritsar feigned ignorance in the said matter and stated that in the absence of Pr. CCIT, he was not able to furnish any details. The Commission was in receipt of a written submission from the Appellant dated NIL (received on 13.11.2018) wherein it was submitted that he was presently posted in Rajasthan nearly 727 Km away from his native place i.e. Amritsar and he would unable to give personal appearance through VC scheduled on 22.11.2018 and therefore humbly requested the Commission to decide the Appeal on MERITS after considering all circumstantial evidences, facts of case and aspect of public interest involved in the matter. It was further submitted that the Administrators and Administrative Agencies in Public Administration, CPIO and FAA of Department of Financial Services were closely associated with arbitrariness, inefficiency, lack of accountability and bureaucratic vagaries. Furthermore, it was submitted that he had sought information under the RTI Act in Public Interest and he had also lodged complaints with Income Tax Authorities against few Senior Officers of the Oriental Bank of Commerce who were involved in unethical acts of malversation and had committed illegalities i.e. Money laundering. He had approached the Income Tax Department for investigation into complaints but they failed and avoided to provide any information. A reference was made to the letter dated 07.08.2018 which reads as "the RTI application dated 30.05.2017 was transferred through online portal on 31.08.2017". In another letter dated 25.09.2017, it had been shown that Appeal DGITC/A/2017/60005 dated 29.06.2017 was received by office of Additional Commissioner of Income Tax (HQ), Admn cum First Appellate Authority, Chandigarh on 19.09.2017 and FAA had passed the order on 25.09.2017 which was not satisfactory but to squelch the shelter and to cover up their own administrative failures. Reply proves that department was trying to hush the matter by stating that application had been transferred to their counterpart at Amritsar. Moreover, reply of the FAA had been received at belated stage and did not record the factual position with respect to issues mentioned in the RTI application rather a cover up exercise. It was also submitted that there was a deliberate attempt to jeopardize and demotivate an individual from participating in eradication of corruption had been deliberately jettisoned and the kind attention of the Commission was immediately required on jurisprudence and vicarious exercise of powers by such bureaucrats in Ministries particularly concerned department. Hence, it was prayed to the Commission to direct the Income tax Department to carry his complaints to logical end which were sent with pro bono public cause and not for any personal gain or dubious motive. An observation by Justice Bhagwati, in S.P. Gupta v. Union of India (1981) S.C.C. 83, at page 273 was quoted to substantiate his claims further.
The Commission was in receipt of a forwarding letter from the Respondent (O/o the Joint Director of Income Tax (Inv.)), Chandigarh dated 07.08.2018 wherein the RTI application dated 30.05.2017 was forwarded to the Appellate Authority, O/o the Pr. Chief Commissioner of Page 2 of 6 Income Tax (CCA), NWR, Chandigarh through online portal on 31.08.2017 as per action history of RTI portal. Consequently, the Appeal dated 29.06.2017 was also transferred for necessary action at their end. The order of the FAA dated 25.09.2017 was enclosed for the ready reference.
The Commission observed that the RTI Act, 2005 stipulates time limits in its various provisions relating to responding to RTI Applications, transfer of applications, filing and disposing of first appeal to ensure that a culture of information dissemination is strengthened so that a robust functioning of the democracy gets established. This was recognised by the Hon'ble High Court of Delhi in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it was held as under:
"14.......The court cannot be unmindful of the circumstances under which the Act was framed, and brought into force. It seeks to foster an "openness culture" among state agencies, and a wider section of "public authorities" whose actions have a significant or lasting impact on the people and their lives. Information seekers are to be furnished what they ask for, unless the Act prohibits disclosure; they are not to be driven away through sheer inaction or filibustering tactics of the public authorities or their officers. It is to ensure these ends that time limits have been prescribed, in absolute terms, as well as penalty provisions. These are meant to ensure a culture of information disclosure so necessary for a robust and functioning democracy."
Furthermore, the Hon'ble Delhi High Court decision in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 it has held that:
"The PIO is expected to apply his / her mind, duly analyse the material before him / her and then either disclose the information sought or give grounds for non-disclosure."
A reference was drawn to the decision of the Hon'ble Delhi High Court in the case of J.P Agrawal v. Union of India-2013(287) ELT25(Del.) wherein it was held as under:
7."it is the PIO to whom the application is submitted and it is who is responsible for ensuring that the information as sought is provided to the applicant within the statutory requirements of the Act. Section 5(4) is simply to strengthen the authority of the PIO within the department; if the PIO finds a default by those from whom he has sought information. The PIO is expected to recommend a remedial action to be taken". The RTI Act makes the PIO the pivot for enforcing the implementation of the Act."
Moreover, the Hon'ble Delhi High Court in the decision J P Aggarwal v. Union of India (WP (C) no. 7232/2009 while stating that the CPIO should not mechanically forward the information collected through subordinates, held as under that:
"7.it is the PIO to whom the application is submitted and it is who is responsible for ensuring that the information as sought is provided to the applicant within the statutory requirements of the Act. Section 5(4) is simply to strengthen the authority of the PIO within the department; if the PIO finds a default by those from whom he has sought information. The PIO is expected to recommend a remedial action to be taken".
The RTI Act makes the PIO the pivot for enforcing the implementation of the Act. The PIO is expected to apply his / her mind, duly analyse the material before him / her and then either disclose the information sought or give grounds for non-disclosure. A Page 3 of 6 responsible officer cannot escape his responsibility by saying that he depends on the work of his subordinates. The PIO has to apply his own mind independently and take the appropriate decision and cannot blindly approve / forward what his subordinates have done.
9. This Court in Mujibur Rehman Vs. Central Information Commission MANU/DE/0542/2009 held that information seekers are to be furnished what they ask for and are not to be driven away through filibustering tactics and it is to ensure a culture of information disclosure that penalty provisions have been provided in the RTI Act. The Act has conferred the duty to ensure compliance on the PIO. This Court in Vivek Mittal Vs. B.P. Srivastava MANU/DE/4315/2009 held that a PIO cannot escape his obligations and duties by stating that persons appointed under him had failed to collect documents and information; that the Act as framed casts obligation upon the PIO to ensure that the provisions of the Act are fully complied. Even otherwise, the settled position in law is that an officer entrusted with the duty is not to act mechanically. The Supreme Court as far back as in Secretary, Haila Kandi Bar Association Vs. State of Assam 1995 Supp. (3) SCC 736 reminded the high ranking officers generally, not to mechanically forward the information collected through subordinates. The RTI Act has placed confidence in the objectivity of a person appointed as the PIO and when the PIO mechanically forwards the report of his subordinates, he betrays a casual approach shaking the confidence placed in him and duties the probative value of his position and the report." The Commission further referred to the decision of the Hon'ble High Court of Delhi in the matter of R.K. Jain vs Union of India, LPA No. 369/2018, dated 29.08.2018, wherein it was held as under:
"9................................That being so, the legislative intent was that the penal provisions are to be implemented or enforced only against the CPIO and not against any other authority like the senior ranking officer or the Appellate Authority who decides the appeal under Section 19(1). If this was not the legislative intention, the words appearing in Sections 19(1) and (2) would have been differently worded and the construction of the statutory provision would have been entirely different. If the argument canvassed by the petitioner was to be accepted then by that interpretation, we would be expanding the meaning of a CPIO and we would be adding something more into the definition of CPIO than the one as was conceived by the legislature. This is not permissible under law and when the CPIO is only indicated to be officer against whom penal action can be taken under Section 20, we cannot read into the said statutory provision anything more by supplying words or meaning which would enlarge the scope of the penal provisions under Section 20. That apart, the CPIO being custodian of the information or the documents sought for, is primarily responsible under the scheme of the RTI Act to supply the information and in case of default or dereliction on his part, the penal action is to be invoked against him only. The Appellate Authority is not the custodian of the information or the document. It is only a statutory authority to take a decision on an appeal with regard the tenability or otherwise of the action of the CPIO and, therefore, there is a conscious omission in making the Appellate Authority liable for a penal action under Section 20 of the RTI Act and if that be the scheme of the Act and the legislative intention, we see no error in the order passed by the learned writ Court warranting reconsideration."Page 4 of 6
Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009, while elaborating on the duties and responsibilities of the FAA, it was stated that:
"3. Deciding appeals under the RTI Act is a quasi judicial function. It is, therefore, necessary that the appellate authority should see that the justice is not only done but it should also appear to have been done. In order to do so, the order passed by the appellate authority should be a speaking order giving justification for the decision arrived at.
The Commission observed that there is complete negligence and laxity in the public authority in dealing with the RTI applications. It is abundantly clear that such matters are being ignored and set aside without application of mind which reflects disrespect towards the RTI Act, 2005 itself. The Commission expressed its displeasure on the casual and callous approach adopted by the Respondent in responding to the RTI application. It was felt that the conduct of Respondent was against the spirit of the RTI Act, 2005 which was enacted to ensure greater transparency and effective access to the information.
The Appellant was not present to contest the submissions of the Respondent or to substantiate his claims further.
DECISION:
Keeping in view the facts of the case and the submissions made by the Respondent, it is evident that no concrete reply had been sent to the Appellant. In fact the jurisdictional authority itself was not very clear to the Respondents. The Commission therefore, directs the CCIT, Chandigarh to examine the matter and ensure that a suitable response is sent to the Appellant in accordance with the provisions of the RTI Act, 2005 within a period of 15 days from the date of receipt of this order and fix responsibility for inaction on the part of the concerned CPIO. The Commission also instructs the Respondent Public Authority to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities.
The Appeal stands disposed accordingly.
Bimal Julka (िबमल जु का)
Information Commissioner (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
K.L. Das (के .एल.दास)
Dy. Registrar (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 22.11.2018
Page 5 of 6
Copy to:
1. The Principal Chief Commissioner of Income Tax (NWR), Sector 17-E, Aayakar Bhawan, Chandigarh-160017
2. The Chief Commissioner of Income Tax, Aayakar Bhawan, Maqbool Road, Amritsar-
143001 Page 6 of 6